Lord Renton: My Lords, I regard this as an important amendment. The provision is in complete contradiction with subsections (1) and (2), which are emphatic in saying that:

"A lay justice who is a member of a local authority may not act",

in the circumstances described. That applies to,

"the Crown Court or a magistrates' court",

under subsection (1), and,

"the Common Council of the City of London",

under subsection (2). However, subsection (5) states:

"No act is invalidated . . . because of the disqualification . . . of the person by whom it is done".

That seems to obliterate the effect of subsections (1) and (2). I implore the Government to give sympathetic understanding to the amendment, as it is very important.

Baroness Anelay of St Johns: My Lords, I support this important amendment. I am certainly grateful to my noble friend Lord Renton for the clarity with which he put his case. I also agree with the noble Lord,

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Lord Goodhart, that, if a justice of the peace who is disqualified sits, effectively the tribunal cannot be impartial for the purposes of Article 6 of the human rights convention.

The very existence of subsection (5) surely means that a party who complains about the presence of a councillor on the tribunal would have to bring new proceedings. Those proceedings might then have to investigate the circumstances of a decision in the original proceedings, in order to discover whether the tribunal had indeed been independent and impartial, despite the presence of and perhaps participation by the disqualified local authority member. That seems unwieldy. It is expensive, time-consuming and complicated. It seems much more practical simply to knock out subsection (5).

Baroness Scotland of Asthal: My Lords, as the noble Lord, Lord Goodhart, suggested, he has brought back the amendment asking for the removal of subsection (5). I listened very carefully to what he said on the previous occasion and indeed today, and also to the comments of the noble Lord, Lord Renton. I have also reconsidered the matter, as I promised.

Our conclusion is that we are content with the draft as it stands. It does not prejudice anyone's rights under Article 6 of the European Convention on Human Rights. The Joint Committee on Human Rights has agreed with that. I am very reluctant to second-guess the Joint Committee on the grounds suggested in Committee, and by implication today, by the noble Lord, Lord Goodhart, that it is "too easily persuaded". On this occasion I find his bravery commendable if, some may think, slightly foolhardy.

As I explained in Committee, the use of "merely" in the clause is crucial. If a local authority justice were to adjudicate where Article 6 of the convention was engaged and in circumstances where that article was violated by his so doing, that would be unlawful by reason of Section 6 of the Human Rights Act 1998. It will always be open to a party to appeal if it is felt that Article 6 bites in any instance. Clause 36(5) does not, therefore, override the requirements of impartiality imposed by Article 6 of the European Convention on Human Rights or by English common law, nor does it purport to do so.

As the noble and learned Lord, Lord Donaldson, said in Committee, there is authority for the proposition that the participation of a disqualified person in the proceedings of a court renders the proceedings voidable but not void. The clause as drafted merely clarifies that decisions taken by a disqualified tribunal, where those decisions bear no prejudice from that disqualification, should not automatically fall. A listing officer or the magistrate himself, if it is realised that a magistrate is disqualified under the clause, will not let him sit in that case. If, as a result of the officer's failing to realise, a disqualified sitting goes ahead, that decision will stand unless and until it is challenged, in any event.

It is true, of course, that the effect of subsection (5) is to place a burden on the challenger to show that the judicial decision should be declared invalid, rather

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than merely that the tribunal was disqualified. But I am not so sure that that is a noticeably worse alternative than doing without subsection (5). In practical terms, I am not sure that there is likely to be much difference. Unlike the noble Lord, I can conceive of interlocutory decisions where the potential interest played no part, or in the circumstances no other decision was likelyfor example, standard directions, or an extension of a time limit given on good grounds.

It seems to me burdensome, and potentially an abuse, for a challenger to delay matters more easily by demanding a re-hearing in such circumstances. Again unlike the noble Lord, I am not entirely sure that a magistrate would always have at the front of his mind circumstances that might lead to disqualification. The clause is quite wide; for example, I question whetherif as per subsection (3)(b) a joint committee or board on which the authority was represented was party to the actionit might be possible for disqualification to be overlooked, and for that disqualification of itself to have little effect on the course of the decision.

I also want to point out that the phrase in question is a re-enactment of Section 66(6) of the Justices of the Peace Act 1997, as I said in Committee. Prior to that, it has been extant since the Justices of the Peace Act 1949. I know that the noble Lord, Lord Goodhart, may feel that that is not an adequate reason to retain it. However, I should be very surprised to be informed that it had caused injustices or problems in all that timeif it has, I have certainly not heard of any, nor has anyone to whom I have referred the matteror that it had affected people's faith in the criminal justice system for the worse.

Since the advent of the Human Rights Act we are, of course, even more aware of the requirement for independence and impartiality; but they were perfectly familiar concepts to our predecessors as well, and we do not believe that the position has changed so much that subsection (5) has now become wholly unacceptable.

I hope, therefore, that the noble Lord will feel able to withdraw the amendment. I reiterate that we have given this matter very careful and detailed reconsideration. Having done so, I am afraid that on this occasion we have come to the same conclusion.

6 p.m.

Lord Renton: My Lords, while I greatly admire the way in which the noble Baroness handles some very complicated matters arising on the Bill, I ask her to bear in mind that this clause has to be interpreted within its own terms. She referred, as I understand it, to the Human Rights Act as a way of explaining what the effect of subsection (5) would be. But surely, if there is to be a doubt about its interpretationand it is clear from what the noble Lord, Lord Goodhart, said that there could be serious doubtthe Government have a duty

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to remove that doubt. Otherwise, injustice will be done. I do hope that the noble Baroness will think about this matter still further.

Lord Goodhart: My Lords, I am most grateful to the noble Lord, Lord Renton, and the noble Baroness, Lady Anelay, for their support. Once again, I am by no means satisfied with the Minister's answer.

I find it impossible to interpret subsection (5) as meaning anything other than that it is not sufficient to invalidate the original decision merely to show that one of the parties who took that decision was in fact a disqualified person under Clause 36(1) and (2). If that is correctI believe that it isthe only way in which one could invalidate the original decision is to go beyond the mere fact of disqualification and show that there was actual bias or at least grounds for believing that there might have been actual bias. That is clearly contrary to the case law involved in Article 6, which shows that the fact that an interested party sits as a member of a tribunalI refer, for example, to the well-known case from the Channel Islands, the McGonnell casewill in itself be sufficient to invalidate the decision even if there is no evidence of actual bias in that case.

I will consider the Minister's response and discuss the matter with one or two colleagues, who are expertsperhaps more expert than I amin human rights law. I may well come back to the issue but, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Effect of Act of Settlement on existing justices of the peace]:

Lord Goodhart moved Amendment No. 88:

Page 18, line 26, at end insert

"( ) Nothing in that section shall disqualify any person from being appointed or acting as a justice of the peace."

The noble Lord said: My Lords, this amendment arises in relation to a very odd and almost inexplicable situation. Clause 37 provides that nothing in Section 3 of the Act of Settlement 1700,

"invalidates . . . any appointment before 31st January 2002 of a justice of the peace".

Section 3 of the Act of Settlement excludes anyone who is born outside the United Kingdom, Ireland or the Commonwealth from enjoying any office or place of trust unless they were born of English parents"English", it should be noted; it is not sufficient to be born of Scottish or Irish parents.

Section 3 has been excluded in relation to a considerable number of offices or places of trust. For many years, no attention has been paid to Section 3 in relation to the appointment of justices of the peace. I do not know the background to this clause but I can only assume that on or about 31st January 2002, it was decidedpresumably on the basis of legal advicethat Section 3 prevented someone who was born outside the United Kingdom or the Commonwealth from being appointed a justice of the peace unless they were born of English parents.

8 May 2003 : Column 1276

The effect of Clause 37 is to reinstate those who were appointed before the 31st January 2002, but to retain the exclusion for those who were not appointed before that date. That seems to me to be a completely absurd restriction. It discriminates against people on the ground of their national origin.

I believe that at least some judges of the higher courts have been born outside the United Kingdom and the Commonwealth of non-English parents. I happen to know that the late Sir Michael Kerr, who was an extremely distinguished Lord Justice of the Court of Appeal, was born in Germany of German parents. Was he disqualified, although no one realised at the time? If he was not disqualified from holding the very high office that he held, why should someone be disqualified from being appointed as a justice of the peace?

The purpose of Amendment No. 88 is to exclude appointments of justices of the peace altogether from the operation of Section 3 of the Act of Settlement. That seems to me to be a matter of obvious common sense and fairness. I hope that the Government will see that that is the case and will accept the amendment or agree to bring back their own amendment to the same effect. I beg to move.